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Lord Goodhart: Amendment No. 41 is purely consequential upon Amendment No. 40. It merely removes something that would become irrelevant were cautioning no longer the basis for a sex offender order.
Lord Williams of Mostyn: I accept that. We believe that there are technical deficiencies, but I am sure that the Committee is not panting for a description of the deficiencies.
Lord Goodhart: I am grateful to the Minister for his answer. I remain not wholly persuaded by it. One of the problems with using the caution as a basis for a sex offender order is the fact that there has been no conviction in a court. That would be the necessary prior basis for the making of any sex offender order.
On retrospectivity--to refer to an amendment which is not here--on Second Reading I raised the point about whether there was an element of retrospective punishment, where the original conviction occurred before the Bill is enacted. I have seen a copy of the letter from the noble and learned Lord, Lord Falconer, on that subject. There is an arguable point here. The appropriate place at which to decide that point is in the courts, and I have not tabled an amendment to raise the specific point of retrospectivity.
The question of whether a caution is an appropriate basis for a sex offender order is one which we will consider. We may return to it. For this evening, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 40 and 41 not moved.]
Clause 18 [Anti-social behaviour orders]:
Lord Mackay of Drumadoon moved Amendment No. 42:
The noble and learned Lord said: In moving Amendment No. 42, I shall speak also to Amendments Nos. 51, 52 and 69. In turning to the provisions of Chapter II, which deal with the introduction of antisocial behaviour orders and sex offender orders into the law of Scotland, I am reminded of the old Scots expression of something tasting like cold kale. Another expression which might be more fully understood is: "reading yesterday's newspapers". Undoubtedly, a number of the issues which are to be addressed in Amendments Nos. 42 to 97, which I suspect we shall not complete in the next 20 minutes, were addressed in particular in Clauses 1 and 2.
As the Minister indicated, there are differences between the procedure in England and that in Scotland. I listened with interest to the full and reasoned--and to himself convincing--arguments he advanced in defending the English provisions from criticism or attack from the noble Lord, Lord Thomas, on the role of the police during the minimum period for which the orders are to exist and the existence or otherwise of the penalty of conditional discharge. Members of the Committee who have read the Scottish provisions will note that in all three respects a different approach is followed in Scotland. Ministers might do well to reflect between now and the Report stage on whether the differences can be as fully justified as they suggest.
It might assist the Committee if I indicate my approach to Clause 18. Those Members who were present on Second Reading will recall that, although warmly and without qualification I welcomed certain parts of the Bill as they apply to Scotland, I expressed a measure of reservation about these orders, in particular the antisocial behaviour order. Since then, I have been able to carry out further research and have been much assisted by two fellow members of faculty; they are, Jonathan Mitchell QC and Simon Collins. Mr. Collins has written a book entitled Anti-social Behaviour and Housing Law, published last year. Much to my surprise, both colleagues, although they are considerable experts in housing law, do not support the proposal to introduce antisocial behaviour orders. Even more to my surprise, I discovered something I should have been aware of: that the Scottish Affairs Committee of another place, in a report prepared during the previous Session, reported to the other place on housing and antisocial behaviour. That is a cross-party committee which took evidence from a considerable number of witnesses. Although it
Among its recommendations which are set out towards the end of the report, it invited the then government to consider whether the law on interdict ought to be altered; whether a power of arrest should be added to interdicts pronounced by the civil courts so that as soon as an alleged breach occurred the person who was interdicted could be arrested by the police; and it recommended speeding up the procedures.
Unfortunately, the consultation paper on that topic which was issued in Scotland in September, with a four week period for responses, failed to mention the existence of the Scottish Affairs Committee report and the fact that it had not supported antisocial behaviour orders, and failed to mention the recommendations which it had made and which the government of which I was a member had accepted.
Therefore, while I accept readily that in response to the consultation paper, the majority of those consulted supported the introduction of antisocial behaviour orders, I suggest that they did so without being fully informed by the Government of what many might think were relevant considerations.
In moving and speaking to these amendments, I pose a number of questions to which I hope the noble and learned Lord the Lord Advocate will respond either this evening or when we return to the matter a week today. First, do the Government intend that an antisocial behaviour order could be justified by conduct which would not found a criminal prosecution; in other words, whether the behaviour which would satisfy the first hurdle to be found in Clause 18(1)(a) which would not at the same time justify a conviction for breach of the peace, assault or other offences relating to the question of antisocial behaviour?
Secondly, could such an order be justified by conduct which would not be sufficient to justify the granting of an interdict at the instance of the person against whom the conduct was directed? In other words, putting it in shorthand form, could an order be pronounced when no crime had been committed and no civil wrong had occurred?
It is important that those issues should be addressed and answered by the Government before the Committee can be satisfied that this idea, which has been discussed fully in relation to England, is appropriate for Scotland. When one reads the report of the Scottish Affairs Committee, one sees that it was unable to find any clear evidence of an increase of antisocial behaviour. Furthermore, I understand that the Scottish Office is currently commissioning research as to the best way to deal with such behaviour. In particular, it has instructed and funded Glasgow University to carry out research as to the cost efficiency of legal solutions to antisocial behaviour compared with non-legal solutions. It has funded other research as to the actual workings of the court process when dealing with antisocial cases in relation to housing tenancies.
The more research I have undertaken since Second Reading--and I apologise to Members of the Committee for not having done it before--the more concerned I am that the case may not have been made out. It may well be that the noble and learned Lord the Lord Advocate will be able to provide answers to the questions that I pose but, as I say, research has failed to convince me any more than I was convinced on Second Reading that this is a sensible way forward.
It is against that background that I turn briefly to the detail of the first group of amendments. In the debate which took place today issues were raised about whether it is right to mix criminal standards of proof or criminal requirements of sufficiency of evidence with what is undoubtedly a civil proceedings. But if there is to be no requirement for corroboration, if the rules of hearsay will not exclude hearsay evidence and if professional witnesses employed by a local authority will be sufficient, there is concern, both at the stage of deciding to bring an application and at the stage of placing it before the sheriff, regarding the risk that the latter could be satisfied on the evidence of one witness that it is appropriate to impose an order of a very serious nature.
I listened earlier to the noble Lord, Lord Williams, when he said that this was a last resort before prosecution or a last warning before that stage was reached and that, once the order was pronounced, then, provided that the defender--as we would call him in Scotland--behaved himself, he would have no need to worry. I find that difficult to reconcile with what the noble and learned Lord the Solicitor-General said on the last occasion; namely, that in terms of an order pronounced under Clause 18 it would be possible to exclude a man from a house indefinitely even though he was the tenant of the house or the owner of the house. So undoubtedly in appropriate cases an order could have very serious ramifications. That is why I pose the question whether, as an additional safeguard, it might be sensible to require a local authority to look for evidence from two sources before it decides to go forward, and to place a similar requirement on the sheriff.
I have a further problem with the Bill as drafted. How precisely is the local authority going to deal with the matter? That point was made by my noble friend Lord Windlesham earlier today. Is it to be dealt with by the social work committee? Is it to be dealt with by the environmental health committee or by the housing committee? How do the Government envisage this happening? Will it be dealt with by officials, or will it be the decision of councillors? These are practical matters. They may, no doubt, be dealt with in guidance, but we have not as yet seen anything in the nature of draft guidance or in the form of a consultation paper about guidance. Those are the matters of unease that I have and which I very much hope the noble and learned Lord the Lord Advocate will answer either tonight or when we resume proceedings on the Bill next Tuesday. I beg to move.
Page 14, line 29, after ("authority") insert ("on credible evidence, from two or more witnesses,").
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